Seelig v. Harvard Co-op. Soc.

• Citation: 246 N.E.2d 642,355 Mass. 532
• Parties: Richard SEELIG v. HARVARD COOPERATIVE SOCIETY.
• Decision Date: 04 April 1969
• Court: United States State Supreme Judicial Court of Massachusetts

Page 642

246 N.E.2d 642

355 Mass. 532

Richard SEELIG v. HARVARD COOPERATIVE SOCIETY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 7, 1969.

Decided April 4, 1969.

David W. Woods, Boston, for defendant.

Arthur T. Winters, Worcester, for plaintiff.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

The declaration in this action of tort contained three counts, one for malicious prosecution, another for slander, and the third for libel. The count for libel was waived. The jury returned a verdict for the plaintiff in the amount of $15,000 on the count for slander and a verdict for the plaintiff in the amount of $18,000 on the count for malicious prosecution. ¹ The case is here on the defendant's exceptions to the exclusion of certain evidence, to the admission of certain evidence, to the denial of a motion for a directed verdict on each count, to the denial of certain requested instructions, to the giving of an additional instruction to the jury after they had retired to deliberate, and to the denial of its motion for a new trial on the count for slander.

We state the evidence most favorable to the plaintiff. The defendant operates a retail store in Cambridge, Massachusetts, for the sale of various articles of merchandise. In April, 1963, it hired the plaintiff to manage its camera department. While the plaintiff was an employee of the defendant, it was the defendant's policy to allow employees in the camera department to take camera equipment from the store in order to become familiar with the operation of the equipment. Whenever an employee did so, a record on a 3 5 card was required to be made and the card placed in a file. When the equipment was returned the card was destroyed. On May 16, 1964, the defendant's assistant general manager discharged the plaintiff.

One Leo Davenport, a police officer of the city of Cambridge, on his 'days off' was employed by the defendant as a 'store detective.' On July 3, 1964, the assistant general manager spoke to Davenport. As a result of this conversation, Davenport conferred with the buyer for the camera department. On July 7, 1964, after visiting the defendant's store, Davenport and another member of the Cambridge police department talked with one Grime, a customer of the defendant's store, at Grime's place of employment. Davenport asked Grime how long he had known the plaintiff, if he 'knew * * * (the plaintiff) had been taken, as far as charges were concerned, for some property which had been taken,' if he knew 'anything about a camera, a strobe light, and a light meter' and if he had 'ever * * * carried out of the store packages containing things which * * * (he) did not know was inside, given to * * * (him) by * * * (the plaintiff).' Davenport told Grime that 'an article had been charged to * * * (Grime's account at the defendant's store).' Grime and the two officers went to Grime's residence where Grime gave the officers certain photographic equipment. They then went to the police station where Grime made a written statement, the pertinent parts of which are set forth in the margin. ²

Davenport returned to the defendant's store and talked with the buyer for the camera department, the assistant general manager and another employee of the camera department. He then obtained a search warrant for the plaintiff's residence in North Reading. Subsequently Davenport, another officer from Cambridge and two members of the North Reading police department searched the plaintiff's residence. They found photographic equipment which the plaintiff admitted was the property of the defendant. The plaintiff and the equipment were then taken to the Cambridge police station. The assistant general manager, the buyer and the other employee of the camera department were at the station. The plaintiff was detained overnight. The following morning, after the plaintiff signed a written statement, Davenport signed criminal complaints charging the plaintiff with larceny. On September 15, 1964, 'a trial was held' and the plaintiff was found not guilty. At no time did any person connected with the defendant ask the plaintiff to return the photographic equipment. At no time did any of the defendant's employees tell Davenport not to initiate proceedings against the plaintiff.

1. The defendant contends that its motion for a directed verdict on the count for malicious prosecution should have been granted. It argues that Davenport was acting as a police officer when he initiated the criminal proceedings against the plaintiff and that the defendant did not ratify his actions. It also argues that because of certain 'uncontroverted evidence' the question whether the defendant had probable cause was one of law which should have been resolved in its favor.

The general rule is that 'where the (police) officer is acting in the performance of his public duties * * * or where the defendant does no more than narrate the material facts to the officer and leave him to decide what he will do * * * the defendant is not liable for the action of the officer.' Kidder v. Whitney, 336 Mass. 307, 308-309, 145 N.E.2d 684, 685. The defendant is not responsible where the officer acts 'entirely upon his own judgment and responsibility as a public officer.' Burnham v. Collateral Loan Co., 179 Mass. 268, 274, 60 N.E. 617. But where by any means it is shown that the officer is not expected to exercise his 'judgment and responsibility as a public officer' the defendant is responsible for the officer's subsequent acts. Mason v. Jacot, 235 Mass. 521, 127 N.E. 331.

There was no evidence in the instant case that Davenport was in the employ of the defendant on the days that he conducted his investigation and initiated the criminal proceedings against the plaintiff. There was evidence, however, that Davenport was employed by the defendant one day a week on a regular basis and had been so employed for a number of years. Throughout his investigation Davenport had frequent conversations with the defendant's assistant general manager. The assistant general manager, having initiated the train of events which eventually resulted in the criminal complaints against the plaintiff, never told Davenport not to initiate the proceedings. While the jury could have found on these facts that Davenport acted solely as a police officer, it could also have concluded that the defendant was responsible for Davenport's actions. See Hirst v. Fitchburg & Leominster St. Ry., 196 Mass. 353, 82 N.E. 10.

Regarding the question of probable cause, the jury was not required to believe the defendant's 'uncontroverted evidence.' See Lenn v. Riche , 331 Mass. 104, 111, 117 N.E.2d 129. There was evidence that the assistant general manager and Davenport knew that the plaintiff had taken the photographic equipment pursuant to the defendant's policy which permitted him to do so. There was also evidence that the defendant never asked the plaintiff to return the equipment. The jury could have inferred from this evidence that the assistant general manager and Davenport did not have reason to believe that the plaintiff had formed an intention not to return it. The jury could also have found that the assistant general manager and Davenport did not believe the statements made by Grime. The question of probable cause was properly before the jury. Having determined that the assistant general manager and Davenport acted without probable cause, the jury could have inferred that they acted with malice. Pihl v. Morris, 319 Mass. 577, 580, 66 N.E.2d 804. There was no error in the judge's denial of the defendant's motion for a directed verdict on the count for malicious prosecution.

2. The plaintiff introduced evidence of the following allegedly slanderous statements: 'Davenport * * * signed a search warrant * * * and two larceny complaints * * * knowing such are public records and that they would be published in the local papers * * *. They were repeated with audiences present at three different hearings and at the trial of this case * * *. They were repeated in the presence of * * * (a member of the Cambridge police department, two individuals, and members of the North Reading police department) in the presence of the plaintiff's wife and his three children * * * to one Grime * * * and several employees of the defendant at the Cambridge Police Department.'

Any defamatory statements contained in the search warrant and the criminal complaints were necessarily written and the plaintiff, having waived the count for libel, cannot rely on them to support the jury's finding on the count for slander. The statements made in the course of the judicial proceedings were pertinent and are, therefore, absolutely privileged. Laing v. Mitten, 185 Mass. 233, 235, 70 N.E. 128; Mezullo v. Maletz, 331 Mass. 233, 236, 118 N.E.2d 356. The remaining statements alleged to be slanderous were statements made by Davenport during the course of his investigation.

The defendant again contends that it is not responsible for Davenport's actions during his investigation. See supra. The defendant also argues that the statements were conditionally privileged and there was no evidence that they were uttered with malice. We do not agree. Although the statements were conditionally privileged, 'the plaintiff has the right, notwithstanding the privileged character of the communication, to go to the jury, if there be evidence tending to show actual malice.' Dale v. Harris, 109 Mass. 193, 196. Where the jury finds that the defendant did not have probable cause when it caused the statements to be uttered, the jury may infer that they were uttered with malice. Retailers Commercial Agency, Inc., petitioner, 342 Mass. 515, 520-521, 174 N.E.2d 376. There was no error in the denial of the defendant's motion for a directed verdict on the count for slander.

3. The defendant excepted to the exclusion from evidence of the typewritten statement made...